Chapter 15 - Delegated legislation and disallowance

Making of delegated legislation

The procedures for making delegated legislation are markedly different from those used in enactment of a statute. There are no stages for legislative passage or opportunity for amendment, and there are no procedural restraints upon rushed legislation.

The LIA:

defines a legislative instrument as an instrument that is of legislative character, and that is made in the exercise of a power delegated by the Parliament (s. 5)

establishes the Federal Register of Legislative Instruments, an authoritative source for all delegated legislation accessible in, and maintained in, electronic form (ss. 20-22)

requires that (unless specifically exempted) all legislative instruments be registered (s. 24), and provides that no legislative instrument will be enforceable unless it is registered (s. 31)

requires the provision of an explanatory statement to accompany each instrument (s. 26)

encourages rule-makers to undertake appropriate consultation, and to report on that consultation in the explanatory statement (ss. 17-19).

There is a prohibition on retrospectivity of delegated legislation where the rights of a person are affected to the disadvantage of that person, or where liabilities are imposed on a person. These limits do not, however, apply to the rights of the Commonwealth or a Commonwealth authority.[8]